On June 21 2016 the commercial branch of the Supreme Court renewed its application of the res judicata principle when the situation acknowledged by the first-instance judge was modified by subsequent events.(1)

A litigant whose case has already been tried is normally unable to sue the same party on the same subject again. However, the court provides an exception if the litigant can prove that new events occurred or were revealed following the first judgment.


The dispute in this case related to the purchase of a shop. The purchaser blamed the seller, who failed to inform his co-contractor of the imminent opening of another shop doing the same business nearby.

As per the first action, the appeal court recognised deliberate negligence from the seller. Nevertheless, the court refused to indemnify the purchaser in light of the fact that the competitor was not yet set up and thus any damage was not actual and not certain.

The claimant did not appeal the decision before the Supreme Court, but decided to file a second action based on the same grounds after the second shop was installed.

The Bordeaux Appeal Court granted damages.

The seller appealed to the Supreme Court. The court had to rule on the authority of res judicata attached to the first judgment, delivered when the damage was uncertain.


The Supreme Court confirmed the Bordeaux Appeal Court decision despite opposition from the seller, who argued that the res judicata principle barred the admissibility of the purchaser's action grounded between the same parties on the same object and cause.

The court noted that the store's opening followed the first decision and modified the situation as recognised by the first judges. Therefore, it excluded the application of the res judicata principle.


The authority of res judicata in French law is provided by Article 1351 of the Civil Code, according to which:

"The authority of res judicata applies only to what was the object of a judgment. It is necessary that the thing claimed be the same; that the claim be based on the same cause; that the claim be between the same parties and brought by them and against them acting in the same qualities."

This common principle prevents a litigant whose action has been rejected to introduce a new action based on the same elements.

The Supreme Court added a new element to the conditions from Cesareo (July 7 2006),(2) based on the principle of the 'concentration of legal arguments', which requires the litigant to submit all his or her legal arguments on the first legal action. Thus, a litigant who would like to introduce a new action using new legal arguments on the same case would face the res judicata principle and the action would be dismissed.

Nevertheless, several exceptions to the res judicata principle may be underlined, including (as in this case) the evolution or modification of facts which may justify a new legal action. The source of the modification can be either the occurrence(3) or revelation(4) of a new fact brought to the attention of the litigant. This new situation then constitutes a new cause (as provided by Article 1351 of the Civil Code) which overtakes res judicata.(5) There is room to apply this theory in all legal matters, notably concerning personal injury.(6)

However, despite relatively clear theory, implementation of this exception proves difficult. Indeed, it does not cover the litigant's negligence. A party who does not produce a piece of evidence in a first trial cannot invoke this deficiency as a new fact justifying a new action.(7) Thus, the qualification of a new fact is subject to the interpretation of the judge who will examine the case. It essentially covers the situation in which a fact known by a third party is legitimately ignored by the litigant during his or her first action.

For further information on this topic please contact Nicolas Contis or Julie Gayrard at Kalliopé by telephone (+33 1 44 70 64 70) or email ([email protected] or [email protected]). The Kalliopé website can be accessed at


(1) Cass, Com, June 21 2016, 14-29.874.

(2) Cass, Ass Plen, July 7 2006, 04-10.672.

(3) For ex Cass Civ 2nd, June 10 2010, 09-67.172.

(4) For ex Cass Civ 3rd, November 14 2012, 11-21.901.

(5) For ex Cass Civ, February 8 1926, DP 1927, 1, Page 191 – CA Rennes, February 21 1929, DP 1931. 2. 24 – and more recently Cass, Com, December 4 2001, 99-15.112 – Cass Civ 1st, October 22 2002, 00-14.035 – Cass Civ 3rd, April 25 2007, 06-10.662 – Cass Civ 1st, April 16 2015.

(6) Cass Civ 2nd, October 7 1970, 69-14.024 – Cass Civ, January 24 1979, 76-15.019 – Civ 2nd, December 9 1999, 98-10.416 – Civ 1st, May 7 2009, 08-12.066 – Civ 2nd, March 29 2012, 11-10.235.

(7) Cass Civ 1st, November 3 2004, 02-18.509 – Cass Civ 1st, February 25 2009, 07-19.761.